Ask A Question about the Daf

Previous daf

Kesuvos, 46

1) A COMPLEX GEZEIRAH SHAVAH

QUESTION: The Gemara derives the punishment (Malkus) for Motzi Shem Ra from a protracted Gezeirah Shavah. The Gezeirah Shavah begins with a word in the verse discussing Motzi Shem Ra (Devarim 22:18), linking it to a word in the Parshah of Ben Sorer u'Moreh (Devarim 21:18), which is then linked to a word in the Parshah of Malkus (Devarim 25:2).

Earlier (45b), there was a similarly protracted Gezeirah Shavah, which taught that a Na'arah Me'urasah must be executed by the gate to her city. That Gezeirah Shavah begins with a word in the verse discussing Motzi Shem Ra (Devarim 22:21), links it to a word in the Parshah about the Mishkan (Bamidbar 4:25), which is then linked to a word in the Parshah of Avodah Zarah (Devarim 17:5). RASHI there explained that the Gezeirah Shavah is only an Asmachta (and is not d'Oraisa).

It seems that Rashi holds that such a multiple Gezeirah Shavah is not a true form of Gezeirah Shavah and therefore is only mid'Rabanan. The RASHASH there (45b) explains that a source for Rashi's words can be found in Eruvin (51a), where the Gemara derives from a similar protracted Gezeirah Shavah the source for the Isur of Techumin of 2000 Amos on Shabbos, and yet we know that the Isur of Techumin is only mid'Rabanan.

How, then, does Rashi understand the complex Gezeirah Shavah here from which the Gemara learns that the punishment for Motzi Shem Ra is Malkus? The Malkus of Motzi Shem Ra is certainly mid'Oraisa and is not just d'Rabanan, as is clear from the Gemara earlier (end of 45b). If a protracted Gezeirah Shavah is only mid'Rabanan, then we still have no source for giving Malkus mid'Oraisa for Motzi Shem Ra! (RASHASH)

ANSWER: The RASHASH answers that there is a significant difference between these two multiple Gezeirah Shavahs. In the Gezeirah Shavah that teaches that a Na'arah Me'urasah is punished by the gate to her city, the word "Pesach" in the verse of Motzi Shem Ra (Devarim 22:21) is linked to the word "Pesach" in the verse about the Mishkan (Bamidbar 4:25), where "Pesach" is written next to the word "Sha'ar." The word "Sha'ar" is then linked to the word "She'arecha" in the Parshah of Avodah Zarah (Devarim 17:5), where we find the Halachah of executing a person next to the gate of the city. We cannot learn that a Na'arah Me'urasah who was Mezanah is executed next to the gate of the city without first making an association of words -- "Pesach" and "Sha'ar" -- in the Parshah of the Mishkan. In such a case, the Gezeirah Shavah is only mid'Rabanan.

In contrast, in the Gezeirah Shavah that teaches that the punishment for Motzi Shem Ra is Malkus, the Halachah of Malkus is learned *directly* from Ben Sorer u'Moreh, which also has Malkus. That is, the word "v'Yisru" in the verse of Motzi Shem Ra (Devarim 22:18) is linked to the word "v'Yisru" in the Parshah of Ben Sorer u'Moreh (Devarim 21:18). We know that a Ben Sorer u'Moreh has Malkus from an independent Gezeirah Shavah of "Ben -- Ben" with the Parshah of Malkus (Devarim 25:2). Hence, Malkus for Motzi Shem Ra is learned directly from Ben Sorer u'Moreh, without any need to first associate words. It is a valid Gezeirah Shavah mid'Oraisa to learn one thing that was itself derived from another thing (as the Gemara says in Zevachim 49b).

Rashi seems to be alluding to this in his unusually lengthy explanation of this Gezeirah Shavah; this explanation is even more evident in the words of Rashi Sanhedrin 71b DH Lamadnu.

46b

QUESTION: The Gemara searches for a source that a father may accept and keep the money of Kidushin for his daughter when she is a Na'arah. The Gemara points out that we see that the Torah gives the father the right to keep the payments of Boshes and Pegam when his daughter is raped. The Gemara suggests that perhaps we can learn from there that he also gets the money of Kidushin.

The Gemara rejects this suggestion, saying that there is a logical reason why the father receives the money of Boshes and Pegam, and that is because "it pertains to him," giving him legal entitlement to those payments, whereas Kidushin does not pertain to him. RASHI explains, based on the Gemara earlier (40b), that the reason the Boshes and Pegam are given to the father is because it was in his power to torment his daughter with Boshes and Pegam by marrying her off to a Menuval (a loathsome, repulsive person) or Mukeh Shechin (leper) and receive the money of Kidushin for doing so. Therefore, he is rightfully entitled to the money paid for her Boshes and Pegam.

Rashi's words are perplexing. The Gemara does not yet know that a man may marry off his Na'arah daughter and receive the money of Kidushin -- the Gemara is still looking for a source for that! How can the Gemara say that he receives the payments of Boshes and Pegam because he could marry her off? We do not yet know that he may marry her off! (TOSFOS, Kidushin 3b)

ANSWERS:

(a) TOSFOS in Kidushin (3b, DH v'Chi Teima) answers that the Gemara means that the father gets the money of Boshes and Pegam since he may marry her off while she is a *Ketanah*. Since he could marry her off to a Menuval or Mukeh Shechin and she would *continue to suffer* Boshes and Pegam when she becomes a Na'arah, therefore he is entitled to receive the payments of Boshes and Pegam even when she is a Na'arah (even if he could not marry her off at that stage). We do have a source that the father may marry off his daughter when she is a Ketanah, as the Gemara taught earlier.

Tosfos rejects this approach, though, because if the father is entitled to receive the payments of Boshes and Pegam when his daughter is a Na'arah since he could have married her off while she was a Ketanah, then he should also receive those payments even after she becomes a Bogeres! He could have married her off when she was a Ketanah to a Menuval or Mukeh Shechin and she would still be suffering from it as a Bogeres!

The CHASAM SOFER (Kesuvos 40b) has another objection to this approach. Even if her father marries her off to a Menuval or Mukeh Shechin, after the Nesu'in we can force him to divorce her, like the Mishnah says later (Kesuvos 77a).

TOSFOS here in Kesuvos (40b, DH d'Iy Ba'i) gives a variation of this answer. Normally, a Ketanah is capable of receiving and keeping payments for physical damages done to her, like the Gemara says in Bava Kama (87b). Yet payments for Boshes and Pegam are still given to her father and not to her. Hence, the Gemara wants to learn from there that the Kidushin of a Na'arah should also be given to the father even though the Na'arah has a "Yad" and is able to accept her own Kidushin.

The Gemara rejects this suggestion by saying that the payments of Boshes and Pegam of a Ketanah rightfully belong to her father (even though she is capable of receiving payment for physical damages), since while she was a Ketanah he could have married her off and received money for causing her to suffer Boshes and Pegam. We already have a source that a father may marry off his daughter when she is a Ketanah, and therefore the Gemara's logic is sound. The Gemara is not saying that he could marry her off while she is a Na'arah.

(b) TOSFOS and TOSFOS YESHANIM (40b) suggest that when the Gemara says that "it pertains to him," the Gemara does not mean that her father could marry her off to a Menuval or Mukeh Shechin. Rather, it means that her father himself suffers from the embarrassment and affliction experienced by his daughter. Therefore, there is more reason to give the payments of Boshes and Pegam to him than to give the money of Kidushin to him.

This answer is lacking, though, because the Gemara (40b) does not give this reason as the reason why the father is entitled to the payments of Boshes and Pegam of his daughter. The Gemara says that he gets them because he could marry her off to a Menuval or Mukeh Shechin, like Rashi says here! Why, then, does the Gemara here not respond that Boshes and Pegam cannot be a source for letting the father keep the money of Kidushin, because -- on the contrary -- the fact that he gets the money of Kidushin is the source for why he gets the Boshes and Pegam?

Tosfos answers that the Gemara means to say that even if we find another source for why we give the Boshes and Pegam to the father, we would still not be able to learn from Boshes and Pegam that the father gets the money of Kidushin.

(c) TOSFOS (Kidushin 3b, and as cited by the Rishonim here) suggests that our Gemara holds that a Na'arah can become Mekudeshes either by herself *or* by her father. (This is in fact the way that Reish Lakish understands the opinion of the Chachamim in Kidushin 43b). If so, the Gemara knows that the father could be Mekadesh his daughter when she is a Na'arah and keep the money of Kidushin. Rather, the Gemara is asking for a source that even when the Na'arah marries herself off, the father still gets the money of Kidushin. The Gemara says that the source cannot be from Boshes and Pegam, because those payments are given to the father because he could marry her off to a Menuval or Mukeh Shechin. Therefore, we cannot prove from Boshes and Pegam that if the daughter marries herself off, the father still gets the money for Kidushin. (The Gemara in Kidushin 44a, though, concludes like Rebbi Yochanan, who says that only the father may marry off his Na'arah daughter, and not the Na'arah herself.)

(This approach of Tosfos answers another question posed by Rashi in our Sugya (DH Ketanah). Rashi asks why the Gemara does not learn from "Es Biti Nasati" (Devarim 22:16) that the father could marry off his daughter when she is a Na'arah. Tosfos will answer that we do learn from there that he may marry her off, but the Gemara is asking why *he* gets the money of Kidushin when *she* marries herself off.)

(d) None of the above approaches conforms to the way Rashi (DH d'Shayach Bah) explains this Gemara. Perhaps Rashi has a different approach altogether.

Rashi might be learning that the Gemara knows all along that a father may marry off his daughter who is a Na'arah, and that the Na'arah herself may not marry herself off. That Halachah could be learned from the Halachah of Hafaras Nedarim, since they are both laws of Isur, as Tosfos himself asks (DH Mamona). Thus, when the Gemara asks that we should learn that the father may marry her off and keep the money of Kidushin from the fact that he gets Boshes and Pegam, it already knew that the father may marry off his Na'arah daughter, but did not yet know that the money of the Kidushin goes to the father.

This answers another question. If we do not yet know that the father has the right to marry her off, then how can the Gemara learn that right from Boshes and Pegam? Boshes and Pegam does not teach that he may marry her off, but only to whom the profits go. It must be that the Gemara knew all along that the father may marry her off. The only question is when he does marry her off, who gets the money of the Kidushin: the father or the daughter?

Why does the Gemara not prove that the father gets the money of Kidushin with the Kal v'Chomer that it mentioned earlier, that if he is the one who marries her off, then certainly he should receive the money? The answer is that the Gemara there means that if the father *receives the money* of Kidushin in order to marry her off, then certainly he *keeps that money* and does not have to give it to his daughter after he effects the Kidushin by receiving it. The verse of "Es Biti Nasati" implies that he may actually accept the money of Kidushin in order to make the Kinyan of Kidushin (and not just that he may agree to the Kidushin) when his daughter is a Ketanah, and if he may accept the money, then he certainly gets to keep it. In the case of a Na'arah, though, we know that he may marry her off to someone, but we do not know who accepts the money -- may he accept the money (and keep it), or is she the one who accepts the money (and keeps it).

The Gemara tries to prove from Boshes and Pegam that the father should be the one to accept and keep the money, since it is a profit made by his daughter. The Gemara rejects this proof because the father may marry her off to a Menuval or Mukeh Shechin and take money for causing her to suffer Boshes and Pegam.

This sheds light on another seemingly inexplicable point in the words of Rashi. Rashi explains, when the Gemara rejects the proof from Boshes and Pegam, that the father could take money for marrying her off with "Kidushei Bi'ah" to a Menuval or Mukeh Shechin. Why does Rashi mention Kidushei Bi'ah? The father could marry her off with any type of Kidushin, including Kesef and Shtar (and afterwards the Menuval will be Bo'el her)!

Rashi might mean that the Gemara knows already that the father has the right to agree with or refuse the Kidushin; the question is only who *accepts* the money or Shtar of the Kidushin. Since it is possible that the daughter is the one who accepts the Kesef or Shtar, the Gemara cannot be saying that the father has the ability to give his daughter to a Menuval in exchange for being Mekadesh her with Kidushei Kesef or Shtar, because even though the father agrees to the Kidushin, if his daughter refuses to accept (and make a Kinyan on) the Kesef or Shtar the Kidushin cannot take effect. Therefore, it is not within the father's power to effect such a Kidushin against his daughter's will. However, he could tell a Menuval or Mukeh Shechin to go and be Bo'el his daughter and be Mekadesh her with Bi'ah. Even if the Mukeh Shechin does that against the will of the Na'arah, the Kidushin will be valid because it is done with the consent of the father. Consequently, the father is entitled to take the money for the Boshes and Pegam, even if he is not entitled to take the money of Kidushei Kesef. On Daf 40b, in contrast, Rashi says that Boshes and Pegam go to the father since he could be Mekadesh her with Kidushei *Kesef, Shtar, or Bi'ah" to a Menuval or Mukeh Shechin, since Rashi there is following the conclusion of our Gemara, that a father *can* accept Kesef or a Shtar for his daughter's Kidushin. (M. Kornfeld)